Today the D.C. Circuit upheld the constitutionality of the ban on protesting in the Supreme Court plaza. In doing so, Judge Srinivasan cited Justice Breyer’s statement about closing the door (remember that?):
In marked contrast to the perimeter sidewalks considered in Grace, the Supreme Court plaza distinctively “indicate[s] to the public”—by its materials, design, and demarcation from the surrounding area—that it is very much a “part of the Supreme Court grounds.” Id. at 183. The plaza has been described as the opening stage of “a carefully choreographed, climbing path that ultimately ends at the courtroom itself.” Statement Concerning the Supreme Court’s Front Entrance, 2009 J. Sup. Ct. U.S. 831, 831 (2010) (Breyer, J.). For that reason, the Court’s plaza—unlike the surrounding public sidewalks, but like the courthouse it fronts—is a “nonpublic forum,” an area not traditionally kept open for expressive activity by the public. The government retains substantially greater leeway to limit expressive conduct in such an area and to preserve the property for its intended purposes: here, as the actual and symbolic entryway to the nation’s highest court and the judicial business conducted within it.
The court also cited Williams-Yulee, citing the interest in “assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure” as a reason why the ban could survive scrutiny.
Under the lenient First Amendment standards applicable to nonpublic forums, the government can impose reasonable restrictions on speech as long as it refrains from suppressing particular viewpoints. Neither the Assemblages Clause nor the Display Clause targets specific viewpoints. They ban demonstrations applauding the Court’s actions no less than demonstrations denouncing them. And both clauses reasonably relate to the government’s long-recognized interests in preserving decorum in the area of a courthouse and in assuring the appearance (and actuality) of a judiciary uninfluenced by public opinion and pressure. The Supreme Court recently, in its just-completed Term, strongly reinforced the latter interest’s vitality, along with the government’s considerable latitude to secure its realization even through speech-restrictive measures. Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656 (2015). The statute’s reasonableness is reinforced by the availability of an alternative site for expressive activity in the immediate vicinity: the sidewalk area directly in front of the Court’s plaza. We therefore uphold the statute’s constitutionality.
What a curious application of Williams-Yulee.